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In re Luhr Bros., Inc.

United States District Court, M.D. Florida, Tampa Division

July 25, 2019

IN THE MATTER OF: LUHR BROS., INC., for Exoneration from or Limitation of Liability, Plaintiff-Petitioner.

          REPORT AND RECOMMENDATION

          THOMAS G. WILSON UNITED STATES MAGISTRATE JUDGE.

         Claimant Willie J. Richardson, Jr., has filed a Motion to Dismiss and/or Transfer Venue (Doc. 14), arguing that the plaintiff s limitation action should be dismissed for improper venue in light of his earlier filed and related action. Upon consideration of the motion and responsive pleadings, arguments made at hearing, and post-hearing supplemental memoranda, I recommend that the motion be granted in part and this case be transferred to the United States District Court for the Southern District of Texas, Galveston Division.

         I.

         On August 30, 2018, Willie J. Richardson, Jr., filed suit against Luhr Bros., Inc. (Luhr) and Bolivar Offshore Services, LLC (Bolivar) in the Southern District of Texas, asserting claims against both defendants under the Jones Act, 46 U.S.C. 30104, and the general maritime law of unseaworthiness (Doc. 14, Ex. A).[1] Richardson alleged he was seriously injured on May 31, 2018, when attempting to change a light on a buoy marker in the navigable waters near St. Pete Beach, Florida, while employed as a deckhand for Luhr and Bolivar aboard the Blue Marlin, a tug boat owned by Luhr (id., pp. 2-3, ¶¶ 5-6).[2]

         On September 25, 2018, Luhr initiated this action pursuant to the Limitation of Liability Act (Doc. I).[3] Luhr was the owner of the LB 148, a 24-foot long crew boat used primarily as workboat (Doc. 1, p. 2, ¶¶ 4-5). Luhr sought exoneration or limitation of liability with respect to an incident on May 31, 2018, in which the LB 148 was engaged in changing out anchor buoy lights near Pinellas County, Florida, and "an individual working from the vessel claims to have been injured" (id., ¶ 6). Luhr alleged that "one person ha[d] placed [it] on notice of claims asserted as a result of injuries allegedly sustained in the above-described incident" (id-, ¶7). Luhr alleged that there were no suits arising out of the incident pending against the LB 148 (id., p. 4, ¶ 14).

         On January 23, 2019, Richardson filed his instant motion, requesting dismissal of the limitation complaint for improper venue pursuant to Rule F(9) of the Supplemental Rules for Certain Admiralty and Maritime Claims (Doc. 14).[4] Richardson argued that Luhr was required to file its complaint in the Southern District of Texas because Richardson had already brought suit against Luhr in that court with respect to Luhr's claim (id., pp.3-4). In the alternative, Richardson requested the complaint be transferred to the Southern District of Texas (id., p. 4).

         On February 5, 2019, Luhr responded that it was not required to file its limitation action in that district. It argued that Richardson's complaint did not include a claim with respect to which it sought to limit liability because each claim pertained solely to the Blue Marlin, Luhr did not own the Blue Marlin, and no claims involving the LB 148 were alleged (Doc. 17). Luhr maintained that it properly filed its limitation action in this district because the LB 148 had not been arrested or attached, it had not been sued, and it was located in this district at the time of filing (id., pp. 3-4). In the event the court disagreed, Luhr requested that its case be transferred instead of dismissed (id-, P- 4).[5]

         On February 8, 2019, Richardson sought leave to file an amended complaint in the Texas action to "clarify the identity of the vessels involved in the incident. . ." (Doc. 36, Exh. A, p. 2, ¶ 4). He added that, at the time of the incident, he "was employed in the service of the Blue Marlin and then was instructed to board the workboat LB 148 to assist in changing out anchor buoy lights . . ." (id-)- The motion was granted, and Richardson filed an amended complaint on February 11, 2019. Therein, he alleged that he was injured while working aboard the LB 148, Luhr owned the LB 148, and Bolivar owned the Blue Marlin (Doc. 33, Ex. B, p. 2, ¶¶ 5-6). The named defendants, the substantive claims, and the incident date and location were not amended.

         On April 11, 2019, I held a hearing on Richardson's motion. While the issue was not raised in the motion or pleadings, counsel were asked to address the import of relation back under Fed.R.Civ.P. 15(c), i.e., whether Richardson's first amended complaint related back to the date of his original complaint. In that event, Luhr would be deemed to have been sued as the owner of the LB 148 in the Southern District of Texas before it filed its limitation complaint here, and Supplemental Rule F(9) would direct that its complaint be filed in Texas. Consequently, determining the applicability of relation back would dictate the proper venue provision under Supplemental Rule F(9) and, in turn, resolve the dispute. As directed, Richardson and Luhr both filed post-hearing supplemental memoranda (Docs. 33, 36).

         II.

         The issue here is whether the limitation complaint was properly filed in this district. Supplemental Rule F(9) pertinently provides that where, as here, a vessel has not been attached or arrested, the complaint shall be filed "in any district in which the owner was sued," but if "suit has not been commenced against the owner, the proceedings may be had in the district in which the vessel may be." Fed.R.Civ.P. Supp. Rule F(9).

         The problem here is that Richardson sued Luhr in the Southern District of Texas before this suit was filed, but he got the name of the vessel owned by Luhr wrong. Thus, he incorrectly alleged that Luhr owned the Blue Marlin, rather than LB 148. However, after Luhr filed its limitation complaint in this court, Richardson amended his complaint in the Texas action to allege that Luhr owned the LB 148. If that amendment relates back to the date Richardson filed his initial complaint against Luhr in the Texas action, Supplemental Rule F(9) would direct that Luhr's limitation complaint be filed in Texas.

         Federal Rule of Civil Procedure 15(c)(1)(B) provides:

An amendment to a pleading relates back to the date of the ...

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